Prayer
Criminal Appeal has been filed under Section 378 of Cr.P.C., pleased to set aside the judgment of acquittal passed in Special Case No.44 of 2014, dated 18.04.2016 by the Court of Special Court for Prevention of Corruption Act Cases, Villupuram and convict the respondents/accused (A-1 & A-2) as charged.
Appeal
The Criminal Appeal is filed against the order of acquittal passed by the Special Court for Prevention of Corruption Act in Special S.C.No.44 of 2014. The State represented by the Deputy Superintendent of Police, DV&AC, Villupuram, is the appellant. A-1/K.Ponmudi @ Deivasigamani (Public Servant) and A-2/P.Visalakshi the wife of the Public Servant tried for charges under Section 13(2) r/w 13(1)(e) of P.C Act, 1988 and Section 13(2) r/w 13(1)(e) of P.C Act 1988 r/w 109 of I.P.C respectively are the respondents.
Facts
2. A-1/K.Ponmudi @ Deivasigamani was the Minister for Higher Education and Mines, Government of Tamil Nadu, during the year 2006 to 2011. Soon after his party lost the power, case for disproportionate assets was registered against him in Crime No.No.7 of 2011 on 26.09.2011.
3. The final report alleged that, first respondent as M.L.A and Minister for Higher Education and Mines, Government of Tamil Nadu, along with his wife the second respondent during the check period 13.04.2006 to 13.05.2010 acquired assets 65.99% more than their known source of income and could not satisfactorily explain the source. Accordingly, charges were framed and taken up for trial in Special C.C.No.44 of 2015 by the Special Court for Prevention of Corruption Act at Villupuram.
4. To substantiate the charges, on the side of the prosecution 39 witnesses (P.W.1 to P.W.39) were examined and 85 Exhibits (Ex.P.1 to Ex.P.85) were marked. To disprove the charges, on the side of the accused 6 documents (Ex.D.1 to Ex.D.6) were marked in the course of the cross examination of prosecution witness. No witness for defence examined.
5. Pending trial, exercising the power under the Criminal Law Amendment Act, 1944 interim attachment of the respondents properties mentioned in the annexure to the order was passed on 19/07/2013 in Cr.M.P.2115 of 2013. Later, the order of interim attachment was withdrawn vide order dated 24.06.2014. This withdrawal order of the trial Court is challenged by the State and that Appeal is subject matter of C.A.No.679 of 2016. 6. On completion of trial, the trial Court held charges not proved and acquitted both the accused in Special C.C.No.44/2014 on 18th April, 2016.
7. Challenging the order of acquittal, State has preferred the Criminal Appeal.
Trial court acquitting the accused
16. Finally, The trial Court concluded that the offence under Section 13(2) r/w 13(1)(e) of P.C Act not proved against A1 for the reason that the value of assets which stood in the name of A1 at the end of the check period is Rs.60,59,841/-, out of which the properties worth Rs.19,37,731/- alone was acquired in his name during the check period and rest of the properties were acquired by him prior to the check period or by his wife. Therefore, from out of income of Rs.43,34,555/- during the check period, after defraying expenses of Rs.20,44,684/- with the saving he had acquiring the wealth worth Rs.19,37,731/-. This cannot be considered as disproportionate assets acquired without satisfactory explanation of the source of income.
Appreciation of trial court judgment
20. The trial Judge has held that, in the case under consideration, there is evidence on record through P.W.25 and P.W.27 the Bank Officials that A2 was running business and huge turnover from her business. She has already remitted advance Tax and TDS prior to initiation of investigation. Her payment of balance Tax after registering the case on 26.06.2011 and after receiving FON on 14.05.2012 by itself would not be sufficient to hold that the explanations marked as Ex.P.85 and the ITR marked as (Ex.D.1 to Ex.D.5) are unacceptable and filed to escape from the criminal prosecution.
21. Distinguishing the dictum laid by the Hon’ble Supreme Court in State of Tamil Nadu -vs- V. Suresh Rajan reported in (2014) 11 SCC 709, the trial Court has observed that the income Tax returns filed subsequent to registering of case may not be relevant for consideration before framing charge in a petition for discharge. However, it should be taken into consideration in the trial while appreciating the evidence to test the charges. Even if there is suspicion about the income declared by A2, same cannot be multed with the income of A1 who is a public servant, to attract offence under Prevention of Corruption Act, 1988.
Trial court conclusion on Accused-2
22. Regarding A2, the trial Court has concluded that, it has been already seen that the properties held by Al alone at the beginning of the check period was Rs.41,22,110/-. If that is excluded from the total value of assets ( held by A-1 and A-2) at the beginning of the check period then the properties held by A2 alone at the beginning of the check period would be worth Rs.2,30,52,901/-. At the end of the check period the value of the properties held by Al is Rs.63,95,168/- If this is deducted from the total value of assets held by both Al and A2 at the end of check period which is Rs.6,27,23,752/-. Then the worth of A-2 properties alone would be Rs.5,56,61,587/-. The value of assets held by A2 at the beginning of check period subtracted from the value of assets held by her at the end of check period is the value of the properties acquired by A-2 in her name during the check period. That is Rs.3,26,08,686/-.Accepting her individual income during the check period as Rs.5,10,18,715/- and expenditure during the same period as Rs.62,66,603/-, The trial court arrived at the likely savings of A-2 as Rs. 4,47,53,112/- after deducting the expenditure from the income.
Judgments relied on behalf of the accused:
32. To buttress the above submissions, the following judgments are relied:
i). State of Maharashtra -vs- Wasudeo Ram Chandra Kaidalwar reported in [1981 (3) SCC 199].
ii). Krishnanand Agnihotri -vs- State of Madhya Pradesh reported in [1977 (1) SCC 816].
iii). K.Ponnusamy -vs- State of Tamilnadu reported in [2001(6) SCC 674]
Issue involved
33. Along with their respective written submissions, a comparative chart containing details about the prosecution version, defence version and the court finding about the entries found in the Statements I to VII also provided by the respondents counsels for the convenience and easy reference. On hearing the counsels and the perusal of the chart, the contentious points which had emanates and required to be addressed are narrowed to:
a). Is, the trial Court judgment considering A-1 and A-2 as two separate individuals and the properties in the name of A-2 not held on behalf of A-1 is a possible view or an erroneous/wrong view?
b). Is, the opinion of PW-33 regarding the value of the property shown in Serial No.60 of Statement-II is reliable and credible?
c). Whether, 30% deduction for the rental income permitted under the Income Tax Act for the purpose of assessing tax to be considered as expenditure or not?
d). What is the probative value of the income tax returns filed as block assessments for 4 assessment years after the registration of the case for disproportionate assets and issuance of Final Opportunity Notice (FON)?
Trial court has accepted the version of the defence and not P.W.33
35. While accepting the statement of assets at the beginning of check period and its value as shown in Statement-I, the first accused contested the value of the property mentioned in Serial No.60 of the Annexure-II claiming that the construction cost of the building is only Rs.20 lakhs. The trial Court has accepted the defence version rejecting the opinion of P.W.33 and his report Ex.P.64 who assessed the construction costs of the building as Rs.23,35,324/-.
To disbelieve the state public works department valuation report there must be a better reasonable and intelligible opinion should be examined on the side of defence
37. Item No.60 in Annexure-II is a commercial building at Plot No.28 and 29, K.K.Nagar, Trichy Truck Road, Villupuram. The building was rented out by A-1. At the time of inspection by the team of experts from P.W.D, they found the building was in occupation of M/s.Ever Smile Enterprises, stockist for standard tractors. Tracing still further, this property been gifted to A1 by his mother under document No.2825 of 2005 and the plots value is declared as Rs.2,00,000/- under Annexure-I as property held by A1 at the beginning of check period (item No.7 in Annexure – I). Upon this two plots, A1 has put up construction during the year 2007-2008. The Inspection-cum Valuation Report Ex.P.64 provides details like plinth area of the building as Ground Floor RCC roof – 235.96 m2, Ground Floor AC Sheet Roof 614.33 m2, First Floor RCC roof – 235.96 m2 also the value of the building, value of the water supply arrangements, value of Sanitary arrangements, value of amenities, the year of construction, age of the building and depreciation. This valuation report is given by the team consisting of experts from the State Public Works Department. To disbelieve there opinion and to accept the value suggested by the defence, there must be a better reasonable and intelligible opinion from the field experts. Such opinion is conspicuously absent in this case.
Section 45 Indian Evidence Act
38. Section 45 of the Indian Evidence Act accepts Expert opinion as an admissible piece of evidence. In Ramesh Chandra Agrawal -vs- Regency Hospital case cited supra, the Hon’ble Supreme Court emphasises that evidence of expert is admissible when i). Evidence based on reliable principles ii). The reporter must have the required expertise in the filed. iii). The credibility of the experts depends on the material and data furnished in support of his opinion.
Section 24 of the Income Tax Act
43. The above two judgments does not provided any answer whether the deduction given under the IT Act under Section 24(a) to be treated as expense. Also, it is noted that the buildings from which the accused has declared rental income are commercial buildings and not house property Section 24 of Income Tax Act appears to be in respect of house properties. Be it as it may, for the purpose of this case, whether the acceptance of deduction of 30% from the rental income as repair charges to be taken as it is, since A1 having declared he has spent the money towards repair of the building is a debatable point.
Conclusion of High Court on 30% deduction is as to avoid income tax only
46. From the above material evidence, two facts emanates. First, 30% deduction from rental income as repair is only to avoid income tax but not an expenditure actually spent. Second, the said rental income is not from any third party but from A-2.
High court holds that opinion of P.W.33 regarding the property is reliable
49. As a result, in so far as the assets, income, expenditure and saving of A-1, as per the records and evidence, this Court holds the opinion of P.W.33 regarding the value of the property shown in serial No.60 of Statement II is reliable and credible.
Trial court omitted to add rs. 1,97,000/- which is miscarriage of justice
50. Adverting to the remaining contentious issues (a) and (d), having thought fit to segregate A1 and A2 in respect of income and assets. the trial Court ought to have also fairly segregated the expenditure of A-1 and A-2 in all aspects. This is one of the fallacy in the trial Court judgment leading to miscarriage of justice. When considering the expenditures mentioned in Annexure-IV, the trial Court has conveniently left the expenditure of Rs.1,97,000/- during the check period of A1 & A2 and their family members without splitting and assessing the personal expenditure of A-1, his gift of Rs.10 lakhs given to his son declared in the Income Tax Returns. By this omission, the perversity in the trial Court judgment could be manifestly seen.
Trial court without any material accepted the income from agricultural land
54. The trial Court, without any material had accepted the four-fold blotted income from agricultural land, just by relying upon the Income Tax Returns filed by A-2 much after been caught in the net of DV & AC. While the prosecution through expert had established that from out of the agricultural holding, the probable income during the check period could only be less than Rs.14,00,000/-. Without any piece of evidence, the trial Court has accepted the case of the defence that the Agricultural income of A-2 must be construed as Rs.55,36,488/-.
Three crores difference in amount during check was claimed as income of A-2
55. On analysis of the statement of properties mentioned in Annexure-I, which discloses the properties held by A1 & A2, at the beginning of the check period. Item Nos.9 to 24, 27 to 30, 36 to 42 and 44 are properties in the name of A-2. The value of those properties assessed as Rs.2,30,52,901/- by the prosecution and A-2 admits the said value. Similarly, the value of the assets by A-2 at the end of the check period is Rs.5,63,28,584/- as per prosecution and same is also admitted by A-2. While the prosecution had estimated the income of A-2 during the relevant period of time from those properties as Rs.2,22,62,005/-. The claim of the A-2 is that her income from these properties during the relevant of time is about Rs.5,23,76,618/-.
56. On the side of the prosecution, experts in the Agricultural Field, VAO and other Revenue Officials been examined to ascertain the income derived from the agricultural land which stood in the name of A-2. The Adangal and oral evidence of VAO indicates that, substantial portion of the A 2’s land were not under cultivation but remained barren. The tentative income from cultivation of these lands been taken into account and the estimation of the prosecution is not without basis.
The falsehood in the self-serving statements of accused was not at all considered or tested by the trial court
60. The trial Court has conveniently taken the Income Tax Returns and the explanation of Ex.P.84 and Ex.P.85 for ascertaining the income and assests held by them. The inherent falsehood in the self serving statement of the accused not at all been considered or tested with the touchstone of supportive documents. The Income Tax Returns filed belatedly by A-2 after initiating the Criminal Investigation ought to have been tested by the guidelines laid by the Hon’ble Supreme Court unfortunately, the trial failed even to follow the guidelines of the Supreme Court.
V.Suresh Rajan case was rejected by the trial court wherein it was consistently held that income tax returns cannot be held as proof for the legal source of income
61. This Court finds that the trial Court had wantonly brushed aside the dictum laid down by the Hon’ble Supreme Court in State of Tamil Nadu -vs- V. Suresh Rajan cited supra, which was brought to its notice. Subsequent to the V.Suresh Rajan Case, also the Hon’ble Supreme Court had render several other judgments repeatedly holding that the Income Tax Returns cannot be held as proof for the legal source of income. It is only a declaration of income by assessee for the purpose of payment of Tax. The legality of the source of income is to be tested independently. While doing so, the phrase “known source of income” found in Section 13(1)(e) of P.C Act, primarily to be considered as income that would be earned by a public servant from the office of post his attached. This is commonly known as remuneration or salary. The term “income” by itself, is elastic and has a wide connotation. Whatever comes in or is received, is income. But, however wide the import and connotation of the term “income”, it is incapable of being understood as meaning receipt having no nexus to one’s labour, or expertise, or property, or investment, and having further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term “income”.
The uncorroborated claim of A2 regarding agricultural income and business income was accepted without any explanation from A2
64. The trial Court misadventure to split up A1 and A2 as two different is the cause for the miscarriage of justice. The trial court instead of pre-concluding A-1 and A-2 are distinct and different entities, ought to have assessed and determined whether A-2 left alone could have amassed wealth which stands in her name. Whether A-2 had provided any material acceptable and reliable to show she had wherewithal to invest in all these businesses and to acquire properties worth around Rs.3,32,75,683/-. The uncorroborated claim of A-2 that, she had derived agricultural income of Rs.55,36,488/- and business income of Rs.4,68,40,130/- during the relevant point of time is accepted without possible explanation from the accused that the property which stood in the name of A2 were purchased or acquired from the unknown source.
No documents to adduce evidence to show that the income is from agricultural land she holds
65. To accept the explanation found in Ex.P.85 and the Income Tax Returns, there must be documents and evidence lending support to that explanation and declaration. This Court finds not even a piece of evidence produce to lend support and substantiate the claim of A-2 that, from out of the agricultural land she holds, she was able to derive income to tune of Rs.55,36,488/-. Her claim of income comparing to extend of the property is astronomically high contrary to the scientific data provided by the prosecution witnesses, regarding the presumable income from the agricultural land held by A-2.
The money came in and went out from the bank account cannot be used to assess the income of a person
66. Similarly, her declaration of income from the five proprietary concern, the trial Court strangely rely upon the bank statements which reveals only the quantum of money transacted in that account and nothing more. The money came in and went out from the bank account cannot be a criteria to assess the income of a person. There are business firms which may have multiple crores of rupees turnover but not yielding any profit. Equally, there are firms or Company which may have very less turnover but with very high profit margin. The income of respective Company/Firm/Individual, cannot be determined by the quantum of transaction or turnover. Unfortunately, in this case, the trial Court has relied upon the statements of bank officials and the accounts statements to believe the version of the accused that, she was earning income from her business.
Hon’ble Madras High court has come to the conclusion that A-2 did not file income tax regularly is for the reason to adjust and legalise the ill-gotten money accumulated
67. This Court put a very basic question to itself whether a person, who claims who have income around Rs.5 crores during the check period of four years and income tax assessee, will not file Income Tax returns regularly apart from paying advance tax and TDS.? More so, when A-2’s husband the public servant and Income Tax assessee had filed his returns regularly.
68. The only reason for not filing the assessment for all these years could be to adjust the account and legalise the ill-gotten money accumulated, Unfortunately, the trial Court contrary to the law of evidence and the decisions of the Hon’ble Supreme Court and the High Courts, without any reasoning had accepted the explanation and Income Tax Returns shown by A-2.
The trial court ought not to have relied on the bank statements
69. The trial Court, ought not to have relied on the bank statements marked as Ex.P.49, Ex.P.50, Ex.P.54, Ex.P.55 and Ex.P.56, for the purpose of assessing the income, since the statement of bank account is irrelevant document for assessing income. Crl.A.No.53 of 2017.
70. The trial Court carried away by the statement that, A-2 is a multi degree graduate and therefore, she is capable of getting income on her own. Unless, there is evidence to show that, A-2 had utilised her skill to derive income, mere holding degree is not a proof for income or source for income. The trial Court also erred in accepting the income declared to the Income Tax Authority as income derived from the legal source. The declaration to the Income Tax Authority about the income will not sanctify the source of income. A-1 having failed to explain with the supportive document how the income declared to the Income Tax Authority was derived by A-2. Therefore in the absence of explanation for the source, it is to be held that by holding the ill gotten properties on behalf of the public servant, she is guilty of abetting a public servant to acquire wealth beyond the known source of income.
72. In Murugesan & Ors. v. State through Inspector of Police reported in (2012) 10 SCC 383, has held that, if the view taken by the trial court is a “possible view”, High Court not to reverse the acquittal to that of the conviction.
As per section 13(1)(e)P.C Act 1988, the person holding the properties on behalf of the public servant should also liable to explain the source
74. While reading Section 13(1)(e) of P.C Act 1988, it is not only the properties held by the public servant should be accounted of the source, the person, who hold the properties on behalf of the public servant, should also liable to explain the source. Though, conveniently it is argued that the property is in the name of A-2 are all her own holding, the documents and materials clearly show that, A-2 though holds multiple Degree, she is not gainfully employed or a salaried person. She refers five firms which stands in her name and the Agricultural lands which are in her name, as her source of income. Though some of the properties were purchased prior to the check period, substantial properties purchased during the check period. The five firms which she refers also have capital investment which is mentioned in the earlier part of the judgment and for capital investment also she should have explained. Merely referring the properties which could yield income is not sufficient to satisfy the source of income. There must be evidence to show those properties were really yielding income. The burden of proof as far as offence under Section 13(1)(e) of P.C Act is initially on the prosecution to show that properties are held by the public servant or others on his behalf. It should also prima faciely establish that for holding those properties or acquiring those properties, the public servant had no sufficient income. If the prosecution able to establish this fundamental fact, then the burden shifts on the accused to explain the source of income.
List of properties were admitted by A1 and A2
75. In this case, the list of properties held by A-1 and A-2 at the end of the check period as stated by the prosecution is admitted by A-1 and A 2.In respect of expenditures, except a sum of Rs.2,88,000/- (deduction from rental income) as expenditure claimed by the prosecution, there is no dispute about the total expenditure of A-1 and A-2 during the check period. So, the burden shift on A-1 and A-2 to prove the source of income for acquiring these properties.
Documentary evidence relied by the accused is not sufficient to dislodge the ocular or documentary evidence of prosecution
76. A-1 had offered his explanation by way of reply Ex P-84 and A-2 had come forward to rely on her explanation marked as Ex.P.85 and documents Ex.D.1 to Ex.D.5. The explanations found in Ex.P.84 and Ex.P.85 are not a probable or possible explanation supported by evidence. The documents relied by A-2 which are marked as Ex.D.1 to Ex.D.5 are purely self serving documents for the purpose of payment of income tax. The claim of A-2 that, she derived Agricultural Income of about Rs.55,36,488/- during the check period is contrary to the document and ocular evidence let in by the prosecution. The said evidence for prosecution can be dislodged only by equally or more reliable ocular or documentary evidence. To prove her income from the business, A-2 ought to have furnished her sale tax returns declaring turn over, purchase, sale and margin during the respective years. It is easy for any person to open a Shell company or firm and pay Income Tax, declaring income even without real earning. For the Income Tax Department, it is the tax paid for the declared income requires scrutiny but not the source of income. Scrutinising the source of income is not within the domain of the Income Tax Department.
77. The pronouncement of the Hon’ble Supreme Court is loud and clear that the Income Tax returns filed cannot be taken as a gospel truth while deciding a case of disproportionate assets. In this case, the block assessment filed by A-2 after initiating the prosecution has to be rejected in toto. because except the assessment, there is no other evidence filed lending support to the assessment.
Whether the spouse to be treated as separate entity or part and parcel of public servant depends upon the facts of each case
84. Aiding a Public Servant to hold his ill-gotten money will not fall within the true sense of benami transaction but an illegal act / understanding between the parties to hide the ill-gotten money, from the scrutiny of Law Enforcing Agency. Whether the spouse to be treated as separate entity or part and parcel of public servant depends upon the facts of each case. Even if effective business is done by the firms in the name of his spouse, but evidence indicates that, she is only a name lender for the operations done by the public servant, then the judgments of Hon’ble Supreme Court in Nallammal and others -vs- State of Tamil Nadu and D.S.P, Chennai -vs- K.Inbasagaran will not apply.
Madras High Court holds that segregating the income of accused by the trial court is patently erroneous
85. As a consequence of the above discussion, this Court holds that segregating the income of A1 & A2 by the trial Court is patently erroneous contrary to the evidence on record. Just because a person have separate income tax accounts and some business, segregating the accounts and properties of the person who has aided the public servant to hold his ill-gotten property will lead to miscarriage of justice. Therefore, Point (a) held in negative.
87. In a case of disproportionate asset, without supporting and independent evidence, accepting Income Tax Returns that too filed after commencement of investigation been reprimanded and commented by the Hon’ble Supreme Court as below in State of Karnataka vs. Selvi Jayalalithaa and others reported in 2017 (7) SCC 263:
“252). The High Court, on the other hand, readily accepted the income tax returns filed by the assessee and affirmed the claim of A1 of agricultural income of Rs.52,50,000/-. It was of the view that though the income tax returns had been filed belatedly, the same per se could not be a ground to reject the same as a proof of the agricultural income of A1 from grape garden. Thereby, the High Court enhanced the Agricultural Income of A1 to Rs.52,50,000/- permitting an addition of Rs.46,71,600/-.
255). The High Court thus had proceeded not only in disregard of the evidence as a whole but also being oblivious of the legal postulations enunciated by this Court that income tax returns/orders passed thereon are not binding on criminal Court and that the facts involved are to be proved on the basis of independent evidence and that the income tax returns/orders are only relevant and nothing further.”
Scope and limits of Appellate court under section 378 Cr.P.C
89. Before concluding, this Court is duty bound to explain the scope and limits of the Appellate Court under Section 378 of Cr.P.C while dealing appeal against acquittal. This attempt is to dispel the erroneous impression percolated deeply in the minds of few that the Appellate Court cannot or will not interfere the judgment of acquittal even if it is absurd, perverse or erroneous, ignoring the material evidence.
Acquittal shall be interfered if there is miscarriage of justice in acquitting the accused
91. The Hon’ble Supreme Court, in all its judgements rendered either pre or post Chandrappa’s case is consistently emphasizing, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented.
92. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re appreciate the evidence for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and if relevant and convincing materials have been unjustifiably eliminated in the process, it shall be a reason sufficient for interference.
Conclusion
95. In the light of the above observations, the dictum and principles postulated by the Apex Court, applied to the case in hand, this Court find that, the trial Court on superficial reading of the evidence had proceeded with the process of decision making on the premise that A-1 and A-2 are separate entities and they both cannot be clubbed together. This is basically a fallacious approach by the trial Court. The trial Court has failed to understand that, the substance of charge against A-2 is that, she being the wife of A-1 (Public Servant) holding the assets of A-1 which he had acquired through unknown source. Whether, the lack of capital/source to yield income proportionate to the properties acquired in the name of A-2 during the check period is the point which ought to have been first examined by the trial Court instead, ignoring all the material evidence placed by the prosecution to show that the business and the agricultural land of A-2 had not yielded income sufficient to acquire the wealth held in her name and most of those properties itself suspected to be purchased by A-1 in her name and she holds it for A-1, The trial Court, without assigning any plausible reasons for any man of prudence to believe, had first segregated A-2 from A-1, then relied on the Income Tax returns/block assessment filed by A-2 after receipt of Final opportunity Notice (FON). without any corroboration or supporting evidence.
97. Ignoring the first principle of law and the judicial pronouncements, acceptance of the self serving declaration of income to the Income Tax Authority, by an accused in a disproportionate assets case is not a possible view but an erroneous view conceived due to misconception. It is a conclusion arrived by ignoring the most reliable evidence let in by the prosecution regarding the income of A-1 and A-2. The trial Judge has also misinterpreted Ex.P.49 and Ex.P.56 Bank Account Statements as proof of income. A complete miscarriage of justice had occurred by the omission of reliable evidence and by mis-interpretation of the evidence.
100. As a result, the Criminal Appeal No.53/2017 is allowed. The trial Court judgment of acquittal passed in Special Case No.44/2014, dated 18/04/2016, on the file of Special Court for Prevention of Corruption Act cases, Villupuram, is set aside. The charge of offence punishable under section 13(2) r/w13(1)(e) of P.C Act framed against A-1 stands proved. The charge of offence punishable under Section 13(2) r/w 13(1)(e) of PC Act r/w 109 of I.P.C against A-2 stands proved.
State Represented by: The Public Prosecutor, High Court, Madras. [V & AC Villupuram Crime No.7/2011] vs. K.Ponmudi @ Deivasigamani, 2. Tmt.P.Visalakshi, [A1 & A2] – Crl.A.No.53 of 2017 – Reserved on : 27.11.2023 Pronounced on: 19.12.2023 Coram: THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1090870
